In 2003 Dr David Kelly was found dead in the woods. Caught in a political vortex, Dr Kelly had been forced to appear before a televised government committee investigating whether he had accused British government figures of planting in a dossier the questionable claim that WMDs could be unleashed from Iraq in 45 minutes. The Hutton Inquiry concluded that Dr Kelly took his own life. But did he? This blog takes a closer look....
Contact: RowenaThursby@onetel.com

Friday, January 26, 2007

THE CORONER & DAVID KELLYby Renan Talieva

On 16 March 2004, Oxfordshire coroner Nicholas Gardiner announced that he would not reopen the inquest into scientist David Kelly's death.

Citing the absence of fresh evidence or exceptional circumstances to justify reconvening the inquest, he concurred "that the Lord Chancellor's belief in the adequacy of the inquiry was well founded" [1] and declared himself satisfied with Lord Hutton's conclusions regarding the cause and manner of death.

Mr. Gardiner summarily dismissed the concerns of "conspiracy theorists" whom he claimed did not have access to "all the relevant data," noting that he had been furnished additional materials by the Thames Valley Police and had seen an "excellent report" by the detective chief inspector. [2]

The coroner further attempted to stave off objections by anticipating that there would be differences of expert opinion even with a full inquest, and by expressing the wish that the widow and family be allowed to grieve in peace.

He failed to note, however, that many of those concerns are not trivial differences of opinion but sound observations of incomplete and inconclusive evidence. Suspicion that the body was moved, or that Dr. Kelly was physically unable to swallow pills, or that a minimal amount of blood was present at the scene, casts serious doubt on a finding of suicide.

He also chose not to address the odd timing of the police report (commencing before Dr. Kelly left his home and concluding at the time his body was found), or to clarify the disputed identities and functions of individuals involved in the investigation.

And while the family certainly deserves the sympathy and restraint of the public and the media, it is disingenuous to suggest that demanding a legitimate investigation is disrespectful of the bereaved.

In his 14-minute hearing and prepared statement, the coroner offered rationalization—not explanation. By basing his conclusion on information not submitted to the inquiry or made accessible to the public, his investigation raised far more questions than it answered. It also effectively bypassed the established procedure for dealing with suspicious deaths.

Inquest interrupted

On 18 July 2003, the day the body was found, Lord Falconer as Lord Chancellor appointed a judicial inquiry under Lord Hutton to conduct an investigation into the circumstances surrounding the death. Hutton was not granted statutory powers under the Tribunals of Inquiry (Evidence) Act 1921, which would have included authority to subpoena witnesses and to call for new evidence.

The following month, upon the coroner's receipt of the pathologist's amended medical report, Lord Falconer ordered the inquest adjourned and the coroner's investigative function suspended for the duration of the Hutton proceedings. He invoked section 17A(1) of the Coroner's Act 1988 ("the Act"), under which "the Lord Chancellor considers that the cause of death is likely to be adequately investigated by the inquiry."

Section 17A was added by the Access to Justice Act 1999 to allow multiple inquests arising from a fatal disaster to be subsumed within a single judicial inquiry [3]; it has been used for similar adjournments during inquiries into the Ladbroke Grove rail crash, the Harold Shipman homicides, and the sinking of the fishing vessel the Gaul. All three cases involved multiple deaths appropriate to an institutional inquiry where the cause of death could to some extent be assumed from the outset.

That was not true for this case. The provision had questionable relevance and utility to the Kelly investigation, other than to quell controversy arising from the government's justification for invading Iraq and to absolve its officials of culpability for the supposed suicide. In any event, it was not meant to relieve the coroner of overall responsibility for ensuring a credible investigation into the cause of death.

Whatever its political objective, the inquiry proved wholly inadequate to the task of rendering a plausible verdict on how Dr. Kelly died. It failed to clearly establish intent to commit suicide on the part of the deceased or to provide convincing medical evidence to substantiate the cause of death.

Presumption of suicide

The fact that the inquest was replaced by an inquiry does not lower the standard of proof for returning a finding of suicide. It must be proved beyond reasonable doubt that the deceased killed himself and that he intended to kill himself.

A 1975 ruling specifies the following restrictions to coronial presumption of suicide:

"If a person dies a violent death, the possibility of suicide may be there for all to see, but it must not be presumed merely because it seems on the face of it to be a likely explanation. Suicide must be proved by evidence, and if it is not proved by evidence, it is the duty of the coroner not to find suicide, but to find an open verdict." [4]

This is best achieved in an appropriate legal environment with recourse to witness subpoena, sworn testimony, and rigorous cross-examination. The Hutton Inquiry lacked the authority as well as the apparent initiative to adequately explore alternative explanations as to cause of death. It cannot be said that the possibility of foul play was aggressively ruled out.

Burden of proof further requires the submission of positive evidence sufficient to establish the deceased's intention to take his own life. This requirement is not met by inferences drawn from circumstantial evidence or from psychological theories of expert witnesses.It was suggested that Dr. Kelly had suffered a "severe loss of self esteem, resulting from his feeling that people had lost trust in him" and that he was feeling that "the prospects for continuing in his previous work role were diminishing very markedly." [5]

But this was unsupported in fact. It was not shown Dr. Kelly had been informed he could not return to Iraq with the survey group (quite the contrary), that disciplinary action had commenced against him, or that he was in danger of losing his job. There was no evidence from professional colleagues to suggest that his standing in the scientific community was perceived to have been adversely affected or that he had suffered the loss of respect of his peers.

There was also speculation that Dr. Kelly must have been plunged into a "profound sense of hopelessness" [6] by communications he received on the morning of 17 July.

Research indicates, however, that hopelessness is only one etiological factor contributing to an individual's vulnerability to suicide. [7] While it has been shown to be the decisive factor in studies of psychiatric patients with histories of depression and suicidal ideation, Dr. Kelly did not fall into this category. Nor could his thinking style be accurately characterized as exhibiting "a tendency to feel hopeless when faced with a difficult circumstance." [8]

The inquiry failed to provide evidence of premeditation, preoccupation with death or self-harm, history of suicide attempts or life-threatening behavior, despair or despondency in communications with friends and colleagues, persistent depressive mood, history of mental disorders or psychiatric illness, history of alcohol or drug abuse, self-reports of depression, mental confusion or disorientation, sleep or appetite disorder, medical illness or disability, or major financial difficulties.

In fact, the evidence overwhelmingly indicates that Dr. Kelly was in good psychological and physical health, appeared predominantly upbeat in spite of his difficulties, and had exhibited no direct or indirect manifestation of suicidal inclination.

Insufficient evidence

In his report, Lord Hutton defines his terms of reference as including "the circumstances preceding and leading up to the death of Dr Kelly insofar as (1) they might have had an effect on his state of mind and influenced his actions preceding and leading up to his death or (2) they might have influenced the actions of others which affected Dr Kelly preceding and leading up to his death." [9]

He does not mention a responsibility to ascertain "how, when and where the deceased came by his death," which is the objective of an inquest's proceedings and evidence as specified in section 36 of the Coroner's Rules 1984.

The inquiry heard evidence concerning Dr. Kelly's disclosures to the media, his treatment by the government, the progress of the police investigation, the drafting of the dossier, the reporting of the media, and other aspects of the case. But there was little critical analysis of the medical evidence or its interpretation.

Among other deficiencies, the inquiry failed to explore whether the fatal wound could have been inflicted by another person, or how the various bruises and abrasions might have been sustained. Nor did it attempt to resolve conflicting evidence regarding body position, location of blood stains, and the amount of blood at the scene.

Circumstantial evidence exerted an inordinate influence on statements from forensic witnesses, who routinely referred to the ingestion of 29 tablets based on the number of empty blister packs found at the scene. Witnesses were invited to speculate on the feasibility of forced or coerced ingestion of tablets, but were not queried on the availability of injectable substances or other possible scenarios.

Moreover, numerous witness statements and various details of toxicological analysis and pathological evidence were not made available to the inquiry.

When Lord Hutton nonetheless concluded that Dr. Kelly had died from self-inflicted knife wounds, coproxamol ingestion, and coronary artery disease, his unqualified verdict elicited skepticism from a number of observers.

Medical specialists expressed reservations concerning the medical likelihood of the primary cause of death. [10] Legal experts raised objection to the weakened burden of proof and lack of due process. [11] A 9 March broadcast of Channel 4 News reported that even the pathologist who performed the post mortem examination had commented, "I would be more comfortable with a full inquest." [12]

An earlier Online Journal report by this author [13] describes many of the inquiry's evidentiary discrepancies and omissions which, still unresolved, raise the following concerns:

* Is it reasonable to conclude that Dr. Kelly bled to death when there was no assessment of residual blood volume, surprisingly little blood was found at the scene, and a single transected ulnar artery does not typically result in fatal hemorrhage?

* Is it reasonable to conclude that Dr. Kelly had ingested an overdose of coproxamol when he was reported to have difficulty in swallowing pills, the substances could have been injected instead of ingested, and blood levels represented one-third to one-quarter the fatal dosage?

* Is it reasonable to conclude that no other person was involved in the death when Dr. Kelly had previously mentioned "dark actors playing games" and being found "dead in the woods," the primary wound was not typical of self-infliction, and the position in which the body was found was not consistent with other physiological indications?

Although these and other concerns were communicated directly to the coroner in anticipation of the inquest's resumption, he was not persuaded by what he deemed to be irrelevant information.

Inquest denied

In defending his decision to confirm the findings of the Hutton Report in lieu of conducting a full coroner's inquest, Mr. Gardiner pointed out that the Kelly family had accepted the conclusion of suicide.

But the coroner does not undertake his investigation on behalf of the deceased's family or any other representative. He is required under section 8(1) of the Act to hold an inquest into the cause of any violent or unnatural death within his jurisdiction.

The Court of Appeal's 1994 review of coronial law and practice further defines his responsibility as follows:

"It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. ... He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory." [14]

Under British law, the coroner exercises wide discretionary power in deciding who qualifies as an interested party to the proceedings, what evidence is considered, and what verdict is entered. His primary responsibility is to ascertain the facts about how the death occurred.He is therefore granted authority to subpoena witnesses, to examine evidence under oath, and to summon a jury. He has latitude to request whatever additional examination, test, or analysis is deemed necessary to assist his determination of the actual cause of death.

According to section 17A(4) of the Act, where an inquest has been adjourned during a judicial inquiry, the coroner retains the right to resume the inquest following review of the inquiry's findings "if in his opinion there is exceptional reason for doing so." Although the Act does not specify what constitutes an exceptional reason, presumably the coroner must decide whether the expectation of adequate investigation has been met.

In this case, however, it may be that the coroner does not have the last word. Mr. Gardiner is reported to have remarked that "[t]he Lord Chancellor believed there were no 'exceptional reasons' why the inquest into the death of Dr Kelly should be re-convened and neither did he." [15]

This is a significant statement, if it means that the final determination of the Kelly case rests with Lord Falconer—a longtime Blair ally and troubleshooter, and recent Cabinet appointee. Of interest here is the undue haste with which the inquiry was commissioned, its apparent disinclination to scrutinize troubling aspects of the suicide scenario, and the questionable invocation of section 17A.

The potential influence of bias must be considered because, as recent events have demonstrated, clearly defined and well established procedure can be circumvented by political intervention. And discretionary powers meant to facilitate the fact-finding process can instead be used to prevent the disclosure of inconvenient fact.

A question of justice

In the opinion of Lord Falconer, the coroner and the media, the case is now closed. Thames Valley Police confirmed by e-mail that their investigation also concluded with the closing of the inquest.

If Dr. Kelly did not kill himself—and it has not been proven that he did—the continued allegation of suicide represents a regrettable failure of justice.

Amid the swirl of controversy surrounding the so-called Kelly affair, the unresolved anomalies of the death were consistently overlooked. The media in particular neglected to challenge the premature assumption of suicide. They now have a critical role to play in evaluating the credibility of the investigation and its overall consequences for the public interest.

Although it cannot be appealed, the coroner's decision is subject to judicial review. Based on past successful challenges by which verdicts have been quashed or new inquests ordered, the court might consider whether there has been insufficiency of inquiry, rejection or suppression of relevant and available evidence, failure to disclose information to an interested party concerning a critical area of investigation, or failure to meet the standard of proof for a particular verdict.

In making its determination, the court need only consider whether it is possible—not probable—that a different verdict will be returned by a new inquest.

There is also recourse under section 13 of the Act. By this provision the High Court is empowered to order an inquest to be held where the coroner "refuses or neglects to hold an inquest which ought to be held," or where "it is necessary or desirable in the interests of justice that another inquest should be held."

The court makes its determination based on evidence of "fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise."

An alternative remedy is found in the Human Rights Act 1998, if it can be shown that agents of the state failed to provide adequate protection for Dr. Kelly against immediate threat to his life. This reflects every individual's right to life under Article 2 of the European Convention on Human Rights, and is usually related to deaths in police custody.

The human rights organization Liberty observes that "investigations into deprivations of life must be at least, thorough, effective, impartial and careful and the lack of an effective investigation will in itself constitute a violation of Article 2." [16]

These are costly and time-consuming courses of action and, given the current political climate, the coroner's decision will likely stand. Meanwhile, the questions persist.Was a politically-charged, nonstatutory inquiry appropriate to the strict determination required in findings of suicide?

Have the facts regarding David Kelly's death been "fully, fairly and fearlessly" investigated?Was due process observed and proper authority exercised in the disposition of the Kelly case?And the crucial, overriding consideration: Does the Hutton Inquiry represent an adequate investigation into the cause of death, sufficient to render a verdict of suicide?Despite official satisfaction with the outcome, and in light of what the public has been told, the answer to that question is clearly no.